HomeMy WebLinkAboutAgenda 04_SD-20-19_159 Long Dr_ Adam Hergenrother CoCITY OF SOUTH BURLINGTON
DEVELOPMENT REVIEW BOARD
SD‐20‐19_159 Long Dr_ Adam Hergenrother Co_2020‐06‐
16.docx
DEPARTMENT OF PLANNING & ZONING
Report preparation date: June 10, 2020
Plans received: May 18, 2020
159 Long Drive
Final Plat Application #SD‐20‐19
Meeting date: June 16, 2020
Owner
JAM Golf, LLC
1227 Dorset St
South Burlington, VT 05403
Applicant
Adam Hergenrother Companies
68 Randall St
South Burlington, VT 05403
Engineer
Civil Engineering Associates
10 Mansfield View Ln
South Burlington, VT 05403
Property Information
Tax Parcel 0570‐01227
SEQ ‐ NRP
68.91 acres
Location Map
SD‐20‐19
Staff Comments
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PROJECT DESCRPTION
Final plat application #SD‐20‐19 of Adam Hergenrother Companies to amend a previously approved planned unit
development for 450‐acre Planned Unit Development for a golf course and 354‐unit residential development. The
amendment consists of amending the approved Tree Preservation Area and landscape planting plan, reducing the rear
setback for Lot 6 of the Long Drive Project Area, and allowing a private easement and fence to be placed in common lands,
159 Long Drive.
CONTEXT
The subject property is located in a 11‐lot planned unit development approved as part of the Golf Course, with ten (10) of
the lots to be developed with single family dwellings, and one lot with a retained wooded area and an existing golf course,
representing the bulk of the parent parcel, Parcel F. The Project Area is located within the existing golf course in proximity
to already‐developed residential areas. The property, and the entire planned unit development, is located in an area
currently zoned as Southeast Quadrant – Natural Resource Protection. It is served by an existing recreation path and is in
an area identified in the Comprehensive Plan as an area of very low intensity development consisting principally of open
space. Two stormwater ponds consisting of the headwaters to an unnamed tributary to Potash Brook are located within
the subject property, as well as several areas of wetlands.
PERMIT HISTORY
The Board approved final plat application #SD‐18‐27 for a 10‐lot PUD on Long Drive. This decision was culmination of
approximately 18 years of environmental court proceedings, and its form was strongly governed by previous decisions,
court orders and settlement agreements. Per the agreements and orders, the final plat was reviewed under the
regulations in effect on City of South Burlington Subdivision Regulations with amendments through January 4, 1999 and
the South Burlington Zoning Regulations with amendments through April 16, 2001. As the subject application is a new
application, any proposed modifications to the approved plans are subject to current regulations.
Staff reviewed the following documents in preparing these staff comments:
- Master plan decision #MP‐03‐01 as amended and restated by Environmental Court Amended Consent Order and
Decree August 25, 2015
- Preliminary plat decision as represented by the Environmental Court Decision and Order August 21, 2009
- Final plat decision #SD‐18‐27 dated October 3, 2018, and associated civil and landscaping plans
- Tree Preservation Plan (here we refer to the narrative which is included in the Tree Preservation Handbook, not
the drawing) prepared by Warren Spinner for JAM Golf, LLC dated May 13, 2003
- Tree Preservation Handbook, Long Drive Subdivision at Vermont National Country Club dated September 9,
2010
Staff considers it is clear that the intent of the Tree Preservation Area (the thick black line on the approved landscaping
plans, also referred to herein as the “no cut” area) is to retain a screening buffer around the approved development area
which is not in the control of private landowners and to preserve the aesthetics of this area as viewed from an outside
perspective. This project is located on a ridge in an area with mature trees which make up a portion of the South
Burlington skyline. No changes to the approval within the lots should change the view from without. [See, in particular,
“Page 6” note below in blue]
Particularly relevant provisions of the Environmental Court’s preliminary plat decision dated August 21, 2009, regarding
Section 26.151(h) of the Zoning Regulations:
Page 3:
The area at issue in the present application is an area of woodland occupying a wooded knoll located to the
east of Golf Course Road . . . It is on a ridge or height of land between Dorset Street and the eastern edge of
the Butler Farm development, and contains particularly mature and tall trees. It is a distinct wooded feature
in the landscape, and appears in the skyline of the easterly half of the VNCC property.
SD‐20‐19
Staff Comments
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The wooded knoll descends most steeply to a lower elevation of lots 4, 3 and 10, while the remaining lots
contain more gentle slopes.
Top of page 4:
The lot lines for all ten lots do not extend to the edges of the project property; that is Applicant proposes to
retain the land at the outside edges of the project property.
Starting at bottom of page 4:
Southerly and easterly of proposed Lots 8 and 9, and easterly of proposed Lots 10, 4, 5, and 6, a wide band of
woodland will remain within Applicant’s control between those lots and the open space of the 13th and 14th
holes of the golf course. Northerly of Lot 6, a wide band of woodland will remain within Applicant’s control.
Westerly of Lots 1 and 2, a band of woodland will remain within Applicant’s control. Westerly of Lots 3, 5, and
6, however, the land that will remain within Applicant’s control is proposed to be planted with trees and
shrubs but is not at present heavily wooded. Beyond the woodland of the project property, views are open
towards the west, over other residential developments towards Lake Champlain.
Page 5:
Within the proposed lots, each house site is shown as being located within woodland that is proposed to
remain. The house sites have been placed so as to minimize the number of healthy trees that will have to be
removed. However, it is expected that during development of the lots some field adjustments will have to be
made, although Applicant’s arborist testified that such adjustments could result in saving trees shown on the
plan as intended for removal, as well as the possibility of having to remove trees scheduled for retention. For
this reason, Applicant’s Exhibit 51 [Tree Preservation Plan] proposes that a consulting arborist must work with
the contractor during construction and that certain work such as pruning be performed by a qualified arborist.
Provision should be made for the City to be notified about any field changes from the approved tree
preservation plan before they are carried out.
Applicant proposes to restrict the lot owners’ clearing of trees within the lots, although the enforcement of
such limitations may be difficult given the potential for views to be achieved if more of the trees were cut.
Beyond the proposed lots, on land to be retained by Applicant, Applicant proposes only to cut dead or
diseased trees as necessary to prevent hazardous conditions.
Exhibit 51 only defines the respective responsibilities of the project’s consulting arborist and the contractor
during construction.
Page 6:
[Regarding Tree Preservation Handbook:] This is particularly important so that any purchasers or prospective
purchasers will understand that the lots must remain wooded or become more wooded, and that they will not
have the option of clearing the lots to open up any views beyond what is allowed by the planting plan.
With the addition of lot specific handbooks to become binding on the individual lot owners, Applicant’s tree
preservation and planting plan provides an excellent level of mitigation of the impact from the proposed
clearing of trees for the project.
Page 7:
. . . the proposed project will thin the trees in the area of the roadway and the house sites so that the
woodland feature will be reduced in importance as a natural feature in the landscape. This is an adverse
effect on the scenic appearance of the woodland as a natural feature in the landscape.
The proposed project will also have an adverse effect on the view of the woodland from neighboring
properties and from persons walking along Golf Course [Road] in the areas of Lots 7 and 1, as those houses
will be visible where there is now a view of the intact woodland.
SD‐20‐19
Staff Comments
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Page 8:
The house sites will be partially screened from view from the exterior of the development; the screening effect
will increase as the proposed plantings mature.
Page 9:
Applicant has taken generally available mitigating steps to improve the harmony of the project with its
surroundings. The project [1] proposes to retain as many of the trees as possible on the project property, in
particular on and near the height of land and on the perimeter of the project, [2] proposes to plant a large
number of trees and shrubs, largely on the perimeter of the project, and [3] proposes to preclude the cutting
of trees on project lots adjacent to the perimeter of the project.
DRB’s final plat approval dated October 3, 2018, page 3:
This criterion was the subject of Environmental and Supreme Court appeals. In deference to the sensitivity of
this criterion, the submitted plans provide extensive landscaping detail. The Board notes that the landscaping
plans show an outdated layout for the terminal end of Short Drive and for some of the driveway
configurations and thus the proposed effect cannot be evaluated. The Board further notes that some trees
within the proposed building footprints appear to be hatched with the shading identified in the legend as
“Existing Tree to be Saved.” Though the Board appreciates that it appears the applicant is minimizing
removal of existing trees, a clear landscape plan is necessary to facilitate future inspections in compliance
with Preliminary Approval condition #3a.
The “Tree Preservation Plan for Vermont National Country Club 10 Lot Subdivision in South Burlington, VT,” dated May
13, 2003 and prepared by Warren Spinner includes the following provisions:
Page 2
Successful tree preservation occurs when the goals of the project are achieved with minimal impact to the
trees designed to be preserved. Success is measured over the long term, when trees continue to thrive for
many years after development is completed.
Staff considers any proposed change must be evaluated against these purposes, and anything that detracts from these
purposes should not be allowed.
Somewhat less directly applicable to this application, but still relevant to the intent of the prior decisions, the 2009 decision
and judgement order grant a number of waivers and conditions which apply to this final plat application. Particularly
relevant conditions are as follows.
a. Applicant annually shall provide the City with certification from a qualified consulting arborist as to
compliance with the tree preservation plan and the landscape planting plan on each lot as well as on
the retained project property beyond the lots, specifically listing any areas of noncompliance.
b. Prior to implementation of any field changes to the tree preservation plan, Applicant shall notify the
City Administrative Officer and obtain a determination regarding the need for further application and
approval.
c. Applicant shall obtain approval from the Administrative Officer prior to maintenance work on trees and
underbrush located outside the clearing limits depicted on the plan admitted as Exhibit 21 in the record
of the above‐captioned matter. See paragraph 269 of the Appellant’s proposed findings of fact and
conclusions of law.
d. The lot owner(s) shall abide by the terms of the tree preservation handbook for his/her/their lot.
SD‐20‐19
Staff Comments
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COMMENTS
Development Review Planner Marla Keene and Director of Planning and Zoning Paul Conner, hereafter referred to as Staff,
have reviewed the plans submitted by the applicant against the pertinent Regulations and offer the following comments.
Staff notes that major elements which are proposed to be changed include the following.
Modification to Tree Preservation Area: The applicant is proposing to reduce the tree preservation area within
Lot 6 by 2,592 sf. They have also modified the tree preservation area on the outer common lot by adding 458 sf,
but Staff is uncertain whether this is an intentional change, as it was not mentioned in the applicant’s submission
materials or numerous discussions Staff has had with the applicant.
Removal of Trees Required to be Retained: The applicant is proposing to remove three white pine (listed in 2003
as 12”, 12”, and 14”).
Relocation of Trees Required to be Planted: The applicant is proposing to relocate seven (7) trees required to be
planted on the lot. The trees are proposed to be pushed towards the perimeter of the lot, and in the case of two
white pines, proposed to be located off the lot on the surrounding lands.
Additional trees to be Planted: The applicant is proposing to add one swamp white oak, planted at 3‐3.5”
diameter, at the south side of the lot, and one bur oak, planted at 2‐2.5” diameter, to the surrounding lands north
of the lot. Staff notes this bur oak is labeled as relocated, but Staff has been unable to determine from where it
is being relocated and instead assumes it is new.
Reduction of rear setback: The applicant is proposing to reduce the required rear setback from 30‐ft to 26‐ft to
allow construction of an attached patio and pool.
Widening of Approved Driveway: The applicant is proposing to approximately double the width of the approved
driveway for Lot 6, which results in the need to request removal of trees required to be retained.
Locate a Fence in the Common Lands: The applicant is requesting approval to construct a fence in the outer
common lot. The applicant has stated that the intent of the fence “is to add privacy, use and security to the house.
Working with the arborist we would also clean up the proposed fence area not on lot six to aid in the overall intent
of maintaining a healthy forest along with preserving a buffer.” The applicant has stated in verbal conversations
that the fence would be low‐visibility iron railing fence with vertical posts, with the intent of keeping people out.
Relocate the Sanitary Sewer Pump Station: The prior approval had a sanitary sewer pump station located on the
property line shared by Lots 5 and 6. The applicant is now proposing to locate that pump station entirely within
Lot 6, and has stated in an email to Staff on May 18, 2020 that the proposed sanitary sewer pump station will
serve only the home on Lot 6 and thus its location wholly on Lot 6 does not require an easement. The final plat
approval found that the pump stations were to remain private.
Staff has included the applicant’s cover letter and a supplemental narrative in the packet for the Board wherein the
applicant describes these changes in their own words.
APPLICABLE REVIEW CRITERIA
Modification to Tree Preservation Area:
Staff consider the proposed modification to the tree preservation area must be justified by one of the “Stowe Club
Highlands” factors, discussed in the following paragraphs. If the Board finds that the modification is not justified by the
SD‐20‐19
Staff Comments
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Stowe Club Highlands factors that follow, then Staff considers the Board may not approve the proposed modification.
However, if the proposed modification can be amended to not reduce the overall area of the “no cut” area on a particular
lot, or otherwise alter any part of the “no cut” area such that it does not fulfill the purposes for imposition of the condition,
then Staff considers the Board may evaluate it on it’s own merits.
1. Staff recommends the Board require the applicant to amend their proposal so that it does not reduce the overall area
of “no cut” and does not otherwise detract from the purpose of the “no cut” area. Staff considers that if the applicant
does this, the Board may consider approving the application. If such a proposal is made, the Board should review the
remaining elements of the applicant’s proposal, including removal of some of the trees required to be preserved,
relocation of trees proposed to be planted, reduction of the rear setback, and location of a fence in the common lands.
Staff has only included a brief discussion of these issues below because Staff considers them secondary to the issue of
the Tree Preservation Area.
“Stowe Club Highlands” Review
In Stowe Club Highlands, upon review of an Act 250 proceeding, the Vermont Supreme Court determined “under
what circumstances ... permit conditions may be modified [or amended].” The Stowe Club Highlands decision
generally affirmed the reliance on factors that had been identified by the former Environmental Board:
(1) whether there had been “changes in factual or regulatory circumstances beyond the control of a permittee”;
(2) whether there had been “changes in the construction or operation of the permittee's project, not reasonably
foreseeable at the time the permit was issued”; and
(3) whether there had been “changes in technology.”
These factors are intended to “assist in assessing the competing policies of flexibility and finality in the permitting
process.” See also 24 V.S.A. § 4472(d).
Generally, revisions to the “no cut” area depicted on the landscaping plans for the Long Drive Subdivision would
trigger review of the amendment under the factors for determining when permit conditions may be
amended. However, if the applicant is not proposing to avoid compliance with a condition or to amend the “no cut”
area so that it no longer fulfills the original purposes for and of the “no cut” area, then a modification to the “no cut”
area does not qualify as an amendment that must be justified by one of the “Stowe Club Highlands” factors. So long
as a proposed modification does not reduce the overall area of the “no cut” area on a particular lot, or otherwise
alter any part of the “no cut” area such that it does not fulfill the purposes for imposition of the condition in the first
place:
- maintaining the woodland as a distinct wooded feature in the landscape, that continues to appears in the
skyline of the easterly half of the VNCC property,
- minimizing views of the houses from public roads and recreation path,
- maintaining the peripheral area outside the lots lines under the control of someone other than lot owners or
someone who does not agree to abide by requirements for the peripheral “no cut” zone so as to discourage
clearing of lots for views (despite the Tree Preservation Handbook), to minimize views of houses from public
rights‐of‐way, and to maintain the woodland as a distinct wooded feature in the landscape,
(see the above relevant provisions from the August 21, 2009, Environmental Court decision), the applicant need not
demonstrate that the proposed modification is justified by one or more of the Stowe Club Highlands factors.
Staff considers that since the proposed modification results in a reduction of the “no cut” area by
2,592 sf within Lot 6, then the applicant must demonstrate that the proposed modification is justified by the Stowe
Club Highlands factors, ie that “changes in factual or regulatory circumstances beyond the control of a permittee,”
“changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the
permit was issued,” and “changes in technology” have occurred necessitating the change in tree preservation area.
SD‐20‐19
Staff Comments
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Changes in Factual or Regulatory Circumstances Beyond the Control of a Permittee
At the time of master plan approval, the Southeast Quadrant consisted of a singular zoning district. The August
25, 2008 master plan amended agreement notes on the bottom of page 6 “The Parties agree either or both of
the Developers may at some point in the future seek to amend or alter the Master Plan in due course, as it sees
fit in its sole discretion, but that any such application(s) must comply with the City of South Burlington Land
Development Regulations then in effect.” The current zoning for the property is SEQ‐NRP, which does not
contemplate development. Therefore Staff considers no additional development beyond that in the various
settlement agreements and court order should be approved.
2. Staff recommends the Board ask the applicant to describe whether there are changes in factual or regulatory
circumstances justify the proposed modification.
Changes In The Construction Or Operation Of The Permittee's Project, Not Reasonably Foreseeable At The Time
The Permit Was Issued
Staff considers that there have been changes to the extant trees on the subject property since the master plan
agreement, but not significant changes since the final plat approval in 2018.
3. Staff recommends the Board ask the applicant to describe whether there are changes in the construction or
operation of the project that justify the proposed modification.
Changes in Technology
Staff considers this test may apply to changes to the environmental benefits of the proposed tree preservation
area. For instance, if the approved trees to be retained were found to be an invasive species, this test may be
satisfied.
4. Staff recommends the Board ask the applicant to describe whether there are changes in technology that justify the
proposed modification.
Staff considers the following factors applicable only if the application is modified so there is no net loss in “no cut” area,
or the Board finds that the Stowe Club Highlands test has been met:
Removal of Trees Required to be Retained: The trees to be removed had a total size of 38‐inches in 2003. The applicant
appears to be proposing two trees with a total diameter of 5‐6” to replace these three trees. Given the purpose of the
agreements described above for the lots to remain wooded or become more wooded,
5. Staff recommends the Board require the applicant to provide a more comparable replacement for the trees to be
removed, and that those trees be required to be replaced on the same side of the lot as those that are proposed to be
removed.
Relocation of Trees Required to be Planted: Most of the trees are only proposed to be relocated slightly, as shown on
the staff‐annotated version of the provided “Tree Revision Plan,” but some are proposed to be moved from the house lot
to the adjoining common land. Staff considers that relocation of trees from the house lot to common land results in fewer
trees in an area which may be maintained to contain only the approved number of trees, and additional trees in an area
which is intended to be left to revegetate naturally.
6. Staff recommends Board evaluate whether relocating trees from the house lot to the adjoining common land meets
the purpose of the agreements to mitigate the impact of the approved tree clearing.
SD‐20‐19
Staff Comments
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Reduction of the rear setback:
7. Staff recommends the Board consider whether reducing the setback from 30‐ft to 26‐ft detracts from the purpose of
the agreements to preserve the view of the development area from without. Staff considers the tree relocation may
have a more significant impact on this than the setback itself.
Location of a fence in the common lands: Staff considers the proposed fence may have an adverse impact of the stated
goals of the common land outside the house lots to provide a woodlot where the only allowed management is to prevent
hazardous conditions and to removed dead or damaged trees. Staff considers that allowing a fence on these lands may
result in clearing or other improvements over time, whether by the current proposed owner or by subsequent owners.
8. Staff recommends the Board considers whether a fence meets the purpose of the wooded land at the outside edges of
the property as defined by the above‐excerpted master plan, preliminary and final plat decisions.
RECOMMENDATION
Staff recommends that the applicant work with Staff and the Development Review Board to address the issues herein.
Respectfully submitted,
________________________________
Marla Keene, Development Review Planner
Hi Marla,
I wanted to share our thoughts and concerns over final plat application #SD-20-19
that was shared with us.
As a homeowner living on the 11th hole of VNCC, we were told that we would not
see the houses on Long Drive from the 11th hole and that the row of abutting trees
would stay intact. That said, there have been numerous large, older trees that
have been removed/come down along the tree line and throughout the area. So
many, that we can now see through the proposed development over to the 12th
hole.
We find it hard to imagine that the removal of further trees with newer, smaller
ones along with a pool and fence would achieve the goal of being out of the site
from the back side of these houses as originally laid out.
Our understanding is that this development took years to approve due to the
preservation of nature and specific plans having to be adhered to. We see this as
undoing what residents who lived here previously took years objecting to and what
was ultimately agreed upon.
Thank you for your consideration of our comments,
Don & Lisa Angwin
1
Marla Keene
From:Andrew Price <anprice50@comcast.net>
Sent:Friday, May 29, 2020 8:01 PM
To:Marla Keene
Subject:Re: EXTERNAL: development review board final plat application #SD-20-19.
Hello Marla.
I apologize for the error in your name in my last message.
my two concerns focus on the request for a setback waiver and the plan for a fence.
1. first the setback….
The residence has been rotated and driveway has been made a short as possible to maximize the portion of the pool inside the building setbacks. Due to
the compact nature of the site and turnaround requirements the proposed residence can’t be moved any closer to the frontyard setback line without
compromising the turnaround for emergency vehicles. This inhibits the ability to fully utilize the building limits to their maximum. The applicant is
requesting approval for a rear yard setback waiver for the proposed pool. For this lot the existing rear yard setback is 30 feet. The proposed rear yard
setback would be reduced to 26 feet to help offset the impacts of the hammerhead turnaround on the building zone.
the above excerpt from the May 8 letter is an example of my concern that i wish the review board to consider.
in my view, the applicant is requesting a setback waiver to allow a large house (5 bedrooms) with a pool to be situated
on a lot that is not quite large enough to accommodate both the house size, the pool, and the emergency turnaround
while meeting the setback requirements. i believe the same developer built a 4 bedroom house with a pool on golf
course road on a lot of 0.6 acres ‐ 42% greater lot size than the lot the subject of this waiver request.
this is not a new requirement imposed after the project was already underway. it is simply a constraint that should be
adhered to, and the plans should adjusted to respect the established setback requirement.
2. the fence…
the developer references a fence in the May 16th email. it is not clear to me where it will be situated, what its
appearance will be, its size, how it will fit with the landscape, etc.
does the fence need any waiver as well?
I appreciate your sending the material received thus far.
please DO send my comments along to the Board.
thanks,
Andrew Price
376 Golf Course Road
South Burlington